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NAVY | BCNR | CY2009 | 02822-09
Original file (02822-09.pdf) Auto-classification: Approved
DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

HD:hd
Docket No. 02822-09
5 June 2009

From: . Chairman, Board for Correction of Naval Records

 

To: Secretary of the Navy

Subj:

Ref: (a) 10 U.S.C. 1552

Encl: (1) DD Form 149 dtd 28 Feb 09 w/attachments
(2) Subject's e-mail dtd 1 Jun 69
(3) PERS-32 memo dtd 20 Apr 09
(4) Subject's itr dtd 23 May 09

1. Pursuant to the provisions of reference (a), Subject,
hereinafter referred to as Petitioner, filed enclosure (1) with
this Board requesting, in effect, that the applicable naval
record be corrected by modifying the fitness report for
18 December 2007 to 31 October 2008 (copy at Tab A) by deleting
all marks, averages, recommendations and comments from blocks
33-43 and 45 and all statements and attachments. In enclosure
(2), he indicated completely removing the report would be
acceptable.

4
2. The Board, consisting of Ms. Willis and Messrs. Bowen and
Ivins, reviewed Petitioner's allegations of error and injustice
on 29 May 2009, and pursuant to its regulations, determined that
the corrective action indicated below should be taken on the
available evidence of record. Documentary material considered
by the Board consisted of the enclosures, applicable statutes,
regulations and policies.

3. The Board, having reviewed all the facts of record
pertaining to Petitioner's allegations of error and injustice,
Finds as follows:

a. Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and

regulations within the Department of the Navy.

b. Enclosure (1) was filed in a timely manner.
¢. Petitioner was recommended for detachment for cause
(DFC) on the basis of a command investigation dated 1 May 2008
into the circumstances surrounding the over-obligation of TADTAR
funds during Fiscal Year 2008. In his third endorsement of
23 September 2008 on Petitioner's statement regarding the DFC,
the Commander, Carrier Strike Group EIGHT stated this
investigation "was plagued by violations of law and regulation
which substantially and materially prejudiced the rights of
[Petitioner] and others." On 30 December 2008, the DFC was
disapproved, and Petitioner was detached from his parent
command, USS LABOON (DDG-58), but not for cause.

d. The contested fitness report shows Petitioner was the
executive officer (XO) aboard LABOON from the beginning of the
reporting period to 29 May 2008, when he began temporary
additional duty (TAD) with the Commander, Destroyer Squadron TWO
EIGHT. It is not adverse, making no reference to the
investigation or request for DFC, but marks Petitioner
"promotable" (third best of five possible marks) in block 42
("Promotion Recommendation - Individual"), with no peer
comparison, and assigns him marks of "3.0" (third best of five
possible marks) in six of seven areas (“4.0" (second best) in
the other). Block 41 ("Comments on Performance") says he is a
“good officer” whose performance as XO was "Solid." Petitioner
submitted a statement to the report, indicating he felt his
performance as XO rated a better appraisal. The reporting
senior's endorsement on Petitioner's statement merely said
"Forwarded."

e. In enclosure (3), PERS-32, the Navy Personnel Command
(NPC) office with cognizance over the subject matter of the
case, commented to the effect Petitioner's request should be
denied. PERS-32 noted that Petitioner's TAD unit was not
authorized to submit a concurrent fitness report, but was
permitted to provide input for his regular report.

f. Enclosure (4) is Petitioner's reply to the NPC advisory
opinion. He contended that his having received no fitness
report from the command to which he was assigned TAD for eight
of the 13 months covered by the contested fitness report (as
extended to his detachment on 24 January 2009) unfairly
disadvantaged him. He argues that had he been properly advised
of the regulations and implications of remaining attached to
Commander, Destroyer Squadron TWO EIGHT, he could have sought
transfer.
CONCLUSION:

Upon review and consideration of all the evidence of record, and
notwithstanding enclosure (3), the Board finds an injustice
warranting complete removal of the fitness report in question.
Particularly noting that the report, while not adverse, reflects
a far less than enthusiastic endorsement, the Board believes it
was tainted by the unsuccessful effort to detach Petitioner for
cause, which had been based on a command investigation found to

be seriously flawed. Accordingly, the Board recommends the
following corrective action:

RECOMMENDATION :

a. That Petitioner's naval record be corrected by removing
therefrom the following fitness report and related material:

Period of Report
Date of Report Reporting Senior From To

 

21Novo8 USN 18DecO7 = =310ct08

b. That there be inserted in Petitioner's naval record a
memorandum in place of the removed report containing appropriate
identifying data concerning the report; that the memorandum
state that the report has been removed by order of the Secretary
of the Navy in accordance with the provisions of federal law and
may not be made available to selection boards and other
reviewing authorities; and that such boards may not conjecture
or draw any inference as to the nature of the report.

c. That any material or entries inconsistent with or
relating to the Board's recommendation be corrected, removed or
completely expunged from Petitioner's record and that no such
entries or material be added to the record in the future.

d. That any material directed to be removed from
Petitioner's naval record be returned to the Board, together
with a copy of this Report of Proceedings, for retention in a
confidential file maintained for such purpose, with no cross
reference being made a part of Petitioner's naval record.
4. It is certified that a quorum was present at the Board's
review and deliberations, and that the foregoing is a true and
complete record of the Board's proceedings in the above entitled
matter.

BDOVATA cts dh. faz
ROBERT D. ASALMAN JONATHAN S. RUSKIN
Recorder Acting Recorder

5. The foregoing report of the Board is submitted for your
review and action. \

W. DEAN

Reviewed and approved:

Qaxt Ca

U-\a-69q

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